I dissent as to the reversal.
The majority holds that the lease was forfeited: yet fails to enforce the statute (10505, et seq., Pope's Digest), which requires a lessee to satisfy the lease of record, or be liable for the penalty. The statute is unambiguous. Courts should enforce the applicable statutes, rather than hold that the penalty is too severe.
The majority assigns three reasons for the refusal to enforce the statute. These are: (1) the statute is highly penal, and must be strictly construed; (2) the facts do not justify the imposition of the penalty; and (3) a release by Hardin would not have cleared the record. Let us examine these reasons:
(1) It is true that a statute allowing a penalty is in some instances to be strictly construed; but the rule is also well established, as stated in 59 C.J. 1119: "The rule of strict construction is relaxed in the interpretation of an act designed to declare and enforce a principle of public policy, and a penal statute enacted for the benefit of the public generally should receive a fair and reasonable construction." The statute here (10505, et seq., Pope's Digest) is Act 170 of the Act's of 1923, which strengthened an earlier act (Act 192 of 1921), in order that a landowner would not have his title clouded, and thereby be deprived of his ability to obtain a good lease contract when leasing was in progress. This Act 170 of 1923 declares a sound public policy for the benefit of the public generally. The statute provides for liquidated damages, rather than a penalty. The Legislature made the damages sufficiently large to give the public full protection against lease clouding. The act provides for liquidated damages — not a penalty, and should receive a *Page 814 fair and reasonable construction, rather than a narrow and strict construction.
(2) It is no answer to this statute to say that the facts here presented do not justify the imposition of "the penalty." The statute is plain and unambiguous; the second section reads:
"Damages for Failure to Release After Forfeiture and Notice: Any owner of lands upon which a lease for the development of oil or gas, or other minerals has been given, and the lessee forfeits his rights at any time to further prospect for such minerals upon said lands, by reason of a failure to pay periodical rentals, or to perform other conditions that nullify the lease as to lessee's rights therein, may give written notice, served in the manner of a legal summons upon the lessee, demanding that said lessee execute and place on record a release which in effect will remove any cloud existing upon the title of such lands as provided in 10505: and upon failure of said lessee to comply with said notice, he shall be liable to the lessor or owner of said lands in double damages in whatever sum the owner of such lands may sustain by reason of said cloud or incumbrances upon said lands, after thirty days from the service of said notice, not less than two annual rentals as fixed by the original lease and all costs, including a reasonable attorney's fee to be fixed by the court."
The appellant, Hardin, is clearly within the letter and the spirit of this statute, and I submit that the courts should enforce the applicable statute and award the damages fixed by the Legislature, rather than grant relief from the statute under some theory of "abhorring a penalty."
(3) Finally, the majority says that the release by Hardin would not have cleared Chambers' title of record. The answer to that contention is found in the facts. Hardin initiated this proceeding in the chancery court, claiming as lessee under the lease. He thus brought himself within the statute, and should have executed the release, *Page 815 or been subjected to the penalty. Hardin filed this suit on October 13, 1943, alleging, inter alia, "the said Roy Prewitt, trustee, was acting for the benefit of the plaintiff, Joe Hardin, and the said Joe Hardin is a beneficial owner of said lease and the real party in interest herein." In that complaint Hardin prayed that he recover $2,500 and interest. He made no offer to do equity. To that complaint Chambers filed an answer and cross-complaint, and in the cross-complaint Chambers said: "After it became obvious to the lessor that the lessees had abandoned and forfeited said lease agreement, the lessor attempted to procure a release from the lessees and on March 27, 1943, proper notice of forfeiture and a request for release was prepared and same placed in the hands of the sheriffs and served on Roy Prewitt, trustee, and Joe Hardin, by the sheriffs of their respective counties, as required by law."
Chambers prayed for the damages allowed by the statute, and Hardin filed answer to the cross-complaint denying every allegation. It is thus clear that Hardin by his complaint brought himself within the exact letter of the statute as lessee. I submit that this court should award damages according to the statute. Courts do well to apply the law as made by the Legislature, rather than to allow judicial process to become a means of escape from the plain letter of the law. I, therefore, respectfully dissent.